The Constitution Is the Crisis

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It is an almost entirely foregone conclusion that Amy Coney Barrett will be seated on the Supreme Court, cementing a 6–3 conservative majority that will serve as an obstacle to Joe Biden’s policy agenda should he and the Democratic Party win full control of government in November. As everyone by now knows, that’s a majority Biden and Democrats could conceivably do something about. Progressives have been pushing court-packing for years at this point—it’s one of the major items of a structural reform agenda that also includes eliminating the Senate filibuster and adding new states. In recent days, a number of more moderate voices have joined in, backing court-packing as a strategy for rebalancing the judiciary specifically justified by Barrett’s nomination.

The most prominent members of this camp include Quinta Jurecic and Susan Hennessey of Lawfare, who wrote a piece for The Atlantic arguing that court-packing—an idea they had initially dismissed as “institutionally corrosive and politically unserious”—could force Republicans into making stabilizing concessions, provided Democrats add just two justices capable of winning bipartisan support, preserving a 6–5 conservative majority. “This would change the political environment from a situation in which one party routinely plays hardball and the other party gets rolled, to a situation in which both parties have an incentive to cooperate in order to avoid the disaster of an ever-expanding Supreme Court flipping back and forth between parties as power changes hands,” they wrote. “It also corrects the imbalance of a Court stacked with Republican appointees, returning both parties to something closer to an even playing field.”

Joe Biden, no procedural radical himself, has notably refused to reject court-packing outright as an option if Barrett is confirmed, despite having opposed the idea during the Democratic primary. All of this has incensed conservatives, few more so than National Review’s Charles C.W. Cooke, who contends that court-packing would amount to an embrace of the authoritarianism Democrats have seen and decried in Donald Trump. “If the coverage of the Trump era has featured a prominent theme, it has been that destructive ideas must be countered before they take hold, regardless of whether they are again presented or likely to be brought to fruition when broached,” he wrote. “Irrespective of the era, there are few more destructive ideas than Court-packing, and none so keenly in need of ubiquitous condemnation.”

If so, indignant conservatives are late to the game. As Arizona political analyst Hank Stephenson recently noted for Politico Magazine, at least 10 states have seen efforts, led mostly by Republicans, to change the size of their courts over the last 10 years. Additionally, the Supreme Court’s size has been altered seven times in our history; partisan politics influenced most of those occasions, including the very last change—when pro-Reconstruction Republicans who tried to shrink the court under Andrew Johnson expanded it to the current nine seats under Republican President Ulysses S. Grant in 1869.

There is, though, something genuinely strange about the notion that Barrett’s nomination has established a novel and unexpected rationale for packing the court. Conservatives and legal scholars have criticized Biden and his surrogates, entirely fairly, for claiming that Barrett’s confirmation process is somehow “unconstitutional”—it plainly isn’t. Jurecic and Hennessey don’t argue so themselves, but they do make the case that Barrett represents a transgression offering more reason for dramatic reform than the structural defects and inequities progressives have long identified within the constitutional system, some of which they list explicitly. “The Court has come to more closely represent the interests of a powerful minority,” they wrote. “Justices are confirmed by a Senate in which rural, predominantly white states are overrepresented; the Electoral College amplifies the same effect in producing presidents who win elections despite losing the popular vote. And Republican-appointed justices have been able to perpetuate conservative control over the Court despite periods of Democratic control of the White House and Senate by timing voluntary retirements to effectively bequeath seats to their political party.”

“But,” they add, “none of this necessarily meant that the number of justices on the Court should be increased—until now.” Why not? What changed? “The constitutional system has always been full of contradictions, after all, and, idiosyncratic as it is, it has been more or less functional as the basis for a common agreement on how things should work,” they explained. “Today, though, a president who resoundingly lost the popular vote has filled two seats on the Supreme Court. He has since been impeached. If Barrett is confirmed and Trump goes on to lose the election—or if Trump loses the election and Barrett is confirmed after the vote but before he leaves office—the Senate will push that common agreement, already strained, beyond its breaking point.”

Of course, the idea that there had heretofore been a common agreement about “the way things should work” is belied by both Barrett’s nomination and the consternation over it⁠. The dead norms that critics of Republicans are outraged about have atrophied over time because the stakes of holding the court have gotten higher, and the stakes of holding the court have gotten higher because the ideological divide between the two parties on just about all things, constitutional matters included, has gotten deeper. If Republicans felt they shared basic premises with Democrats about how our system should work, they probably wouldn’t have spent the past several decades constructing an infrastructure within the legal profession aimed at totally dominating the judiciary.

Moreover, even if one assumes all that’s happened within the last three or four years—or, if you prefer, the last three or four weeks—violates some previously shared understanding about our system, what actually justified that understanding? As Jurecic and Hennessey note, it has always been the case that a candidate can win the presidency without winning the popular vote; nothing in the Constitution has ever proscribed a president who has—or a president who has been impeached and duly acquitted—from appointing justices. Having won a clear Electoral College victory, Trump has taken the opportunities he has been given to nominate three. Senate Republicans have been approving them through the process the Constitution set out. They acted strategically to hold one of those seats open. You will not find in the Constitution a prohibition against doing so, or, for that matter, any suggestion that the court should be evenly balanced between the appointees of two political camps or parties that didn’t exist at the Founding and that aren’t intrinsic features of our political order.

It is of course true that Republicans have been working to stamp out inconvenient portions of the Constitution elsewhere. Their efforts to prevent minorities from voting have expanded to encompass as much of the Democratic electorate as they can manage under the coronavirus pandemic. But in the dramas that have occupied the Senate over the last half-decade, Republicans have managed to topple norms evidently built out of sand while, clearly, ⁠playing by the only rules that actually matter—the rules undergirding political institutions that structurally advantage them. Republicans haven’t flouted the constitutional order. They’ve made use of it. Things haven’t gone wrong because a system that was humming along fine until recently has been damaged in some fundamental way. The system is humming along essentially as it always has with increasingly dire results. The crisis is not that the American constitutional system is broken but that the American constitutional system is working—perhaps not as the Framers intended but, as a legal and administrative matter, mostly as it was designed to.

Even novelties that were never part of the Constitution’s original design and which many of the Framers would have opposed, like the Senate’s legislative filibuster, aren’t really in major contradiction of it. The Senate has the power to make and unmake such procedures; the Democratic Party could have done away with the filibuster in 2009 and simply chose not to. And the system simply kept chugging along. It is smoothly, cleanly, and efficiently producing the appalling outcomes it was always capable of producing. It is possible that that the Framers, surely indifferent about Trump’s bigotry, would be disgusted instead by the lawlessness and corruption of his administration if they were around today; the shamelessness and hypocrisy of the Republican Party’s effort to control the judiciary at all costs might have horrified them. But they would likely be as or more horrified that the institutions they built have been largely useless against them—that the safeguards they erected to protect the republic from a demagogue have instead protected a demagogue from the republic.

The Barrett nomination hasn’t revealed anything that wasn’t already plain. And so the basic case for court-packing the left, liberals, and any Americans who hold democratic values should be making is precisely the same case that was worth making four weeks, months, or years ago. The Supreme Court fundamentally is and has always been a highly politicized policymaking and policy-destroying institution. As earnestly as legal scholars might debate matters of constitutional interpretation, much of our political discourse on the subject is aimed at obscuring that fact; the supposedly neutral doctrines guiding conservative jurists, in particular, have been crafted to legitimate rulings desired and pressed for by corporations and reactionary interest groups. The process for replacing the participants in this charade is not only anti-democratic but comically medieval; if Justice Ginsburg’s tenure really had been extended by the internal organs of her supporters, it would not have been a point in the system’s favor.

Modest reforms like judicial term limits wouldn’t fundamentally challenge the premise that the final say in our most consequential policy disputes should be left to a set of “unelected justices” operating under the implicit principle of “judicial supremacy”—both completely apt phrases conservatives are fond of using when the court’s rulings do not suit them. The remedy implied by the first is obvious: We should move at least a step closer to electing the justices. This is court-packing. The size of the Supreme Court, again, has been changed multiple times over the years; as the political scientist David Faris said in a recent piece for this magazine, packing is “gloriously legal.” The Republican Party has used every legal means at its disposal to win control over the bench. That’s fine. Democrats should do the same—not out of spite or in an empty tit for tat, but to protect sound policy that the American people desire, that the American people need, and that the American people have been denied by a political system whose counter-majoritarian features are no longer tolerable, provided that policy is in keeping with the very best and most essential portions of our Constitution and all the amendments and rulings that have improved it: a framework of fundamental rights it would also be a progressive court’s duty to secure. It has been the conservative movement’s mission to weaken or demolish them, save for a few choice favorites.

The fact that characterizing the fight for the court as an “existential” one has become a cliché doesn’t make the assertion any less true. As Kate Aronoff wrote last week, a conservative court could place a hard ceiling on climate policy. The stability of this country and all civilization in the years ahead will depend significantly on the federal government acting decisively on the matter as soon as possible; its ability to do so should be absolutely guaranteed, not just as a moral imperative but a practical necessity. All of this requires the addition of four like-minded justices, at minimum, not two—if the Supreme Court goes on to become a quasi-legislature as a result, so be it. And although opponents of packing enjoy constructing scenarios where the court balloons explosively in size as control ping-pongs between Democrats and Republicans, the mandate actually required to pass legislation changing the size of the court is fairly significant. Republicans would need to control the presidency, the Senate, and the House again to retaliate in kind; if Democrats successfully pursue the full slate of structural reforms progressives have demanded, including automatic voter registration, the abolition of the Electoral College, and the addition of new states, that will be harder for the GOP to accomplish.

Is this argument likely to prevail among Democrats in a Biden administration? Absolutely not. They’re likely to insist instead that what happened with Merrick Garland and what is about to happen with Barrett—functionally trivialities relative to the inherent defects of the court as an institution and our constitution as a whole—are affronts that justify a neutral rebalancing that might “depoliticize” the court while, in practice, maintaining the conservative majority on the bench: again, two justices, not four. And they might not attempt even this, Biden’s suggestive hedging on the question notwithstanding. Moderate and conservative Democrats in Congress might prevent any action at all and, as The New York Times’ Sydney Ember and Lisa Lerer reported last week, some in the party already view winning the presidency and the Senate as a potential “consolation prize for losing the court for a generation.”

Even if the fight is hopeless, we shouldn’t leave the field to the institutionalists uncontested. Functionally, doing so would be leaving the field to the Republican Party. Those in the center giving a thought to court-packing now are considering “constitutional hardball not to win the game,” as Jurecic and Hennessey write, “but to get to a place where the cycle of retaliation and politicization can be ended.” But if it’s possible—granted, a very large if—why shouldn’t the game be won? We’ve seen multiple periods of one-party dominance in our history; we’ve also seen defeated political parties wither and die. Why shouldn’t the Republican Party join them? While pundits have bickered about the content and sanctity of our political norms, our president has spent the past week personally and intentionally endangering the lives of his own supporters and people in their communities with packed campaign rallies in the middle of a viral pandemic that has killed, with his assistance, over 200,000 Americans. In his downtime, he’s promoted the theory that his opponent in this election covered up the assassination of Osama bin Laden’s body double by killing Navy SEALs. Most of the Republican Party, of course, has responded to this with silence.

Yet the institutionalist case for moderate structural reforms seems to proceed from the premise that when all is said and done, Republicans will be structurally entitled to a co-equal role in governing and shaping public policy in this country. Why? For what reason? Is it because moderates and conservatives wouldn’t have a home under Democratic rule? Sadly, they already comprise the majority of the Democratic electorate; in general, what conservatives would do as a matter of political organization and strategy if the GOP were nonviable as a national party is not a structural concern. Should we hedge out of a worry that conservatives would turn to reaction and extremism if they were shut out of power? Obviously, this is already happening. A wave of violent reaction is absolutely inevitable no matter what decisions are made under a Biden administration and, in fact, whether or not Biden wins the election; the worst right-wing violence we’ve seen in a generation arrived with a right-wing presidency.

The fear that it might get worse after democratizing reforms shouldn’t deter us; once it is constrained out of deference to an armed minority, democracy is functionally dead. We should hope and pray for leaders with the courage to keep it alive through all that’s to come. The Constitution will not do it—the election of Donald Trump should have shattered the notion that it can be relied upon as a stabilizing force; it cannot be made into one by democratic norms it was not designed to uphold and that, in many cases, it explicitly contradicts.

It has become commonplace to argue that we’re on the cusp or in the middle of a constitutional crisis fed by a collapsing faith in the legitimacy of American institutions. This is wrong. The legitimacy of the Constitution is our crisis. It is a testament to the document’s still extraordinary power that one of our favorite methods of political combat is to presuppose or pretend—as Biden and his camp have with Barrett, as litigants routinely do before the court—that outcomes we find undesirable or unjust are also “unconstitutional.” And it is a testament to the court’s durability as an institution that the party it now disadvantages seems likely to protect the investment its norm-debasing opponents have made in itso that the court might be “saved.”

Even the more radical court-packing schemes, really, are premised on the need to preserve judicial review at least as a formal exercise. There are other options. One alternative idea gaining currency among progressives is jurisdiction-stripping—Article III of the Constitution gives Congress the power to limit the Supreme Court’s authority to hear certain cases. In 1982, John Roberts, then at the Department of Justice, actually wrote memos defending the practice. And as Matt Bruenig of the People’s Policy Project argued recently, policymakers could conceivably attempt to ignore the Supreme Court entirely. “All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding, that [Marbury vs. Madison] was wrongly decided, and that the constitutional document says absolutely nothing about the Supreme Court having this power,” he wrote. “You don’t need a constitutional amendment. You don’t need to pass a law. And you don’t need to appoint any judges. This is a completely reasonable position that also reflects the kind of power top courts have in other countries.” In fact, progressives might consider going even further—why not begin the push for a constitutional convention that would draw up a new document altogether?

But all of these ideas pose their own problems. The legal ins and outs of jurisdiction-stripping are fairly complicated and, without packing, the constitutionality of using it to defend progressive legislation would inevitably be determined by the conservative court. A Democratic president ignoring the court wouldn’t win the legal fight on a matter like abortion rights, where the issue at hand is whether the court will overturn an existing ruling progressives would like to protect and have states settle the question, not whether the court will tie Biden’s hands on new policy. And the integralists, open ethnonationalists, and cranks itching to fully capture the right would be happy to see a Democratic president establish a precedent for either strategy⁠—if conservatives retake power, the country will be at least marginally better off if they still need to do the work of claiming they have constitutional defenses for shredding fundamental rights. As for a new convention, the only real push for one now is being funded by right-wing donors who assume, correctly, that having one today would allow them to destroy what’s left of the American welfare state and the federal government’s capacity to govern once and for all.

That said, the American left should work toward abolishing the Constitution someday—either for a new document or a new democratic order without a written constitution. If a new constitution were written, it would be our third. It’s not at all obvious why what the Founders and Framers thought and did should determine how we govern ourselves today, but for those who believe so, the fact that the Constitution is the second governing document they came up with—and the means by which they did away with the first—should have profound implications. The Articles of Confederation, as we’re all taught, really were unworkable. They established a disjointed country with a pitifully weak national government. But there was a process for amending them, and amending them was, in fact, what the constitutional convention was convened to do. It ultimately produced a radically new document; per the Articles, even the slightest amendment would have to be unanimously approved before taking effect.

The Framers gathered immediately that this would be impossible. Rhode Island, for one, hadn’t even sent a delegate to the convention. They might have chosen to respect the existing document and the process anyway. But they didn’t. It was decided that it would take nine states to ratify the Constitution. Why? Because Article VII of the unratified Constitution said so. Its eventual ratification by all 13 states was made possible by that circularity as well as political and economic pressures. “The last states deciding whether to ratify the Constitution—after the approval of nine others had already made it operational⁠—faced the prospect of being excluded from the union, denied federal military protection, and subjected to trade sanctions,” Harvard’s Michael Klarman writes in The Framers’ Coup. “Moreover, only those states that had ratified the Constitution would be allowed to participate in important decisions to be made by the first federal Congress, such as choosing the nation’s permanent capital and possibly proposing amendments to the Constitution.”

But some states held out for quite some time. In late 1789, legislators in Rhode Island, which would become the last state to ratify the Constitution, sent a letter to an already convened Congress and an already inaugurated George Washington, defending the state’s reluctance to come aboard—they would wait “to see what further checks and securities would be agreed to” and “to see the proposed system organized and in operation.” On May 18, 1790, the proposed system’s Senate, organized and in operation, passed a bill banning trade with Rhode Island. The state ratified the Constitution 11 days later.

James Madison wrote Federalist 40 partially as a defense of the ratification process. While conceding that complaints about the Articles’ unanimity requirement had been “most plausible,” all had been justified, he argued, by “the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth.” The delegates to the convention had understood, moreover, that “in all great changes of established governments, forms ought to give way to substance,” adding, with a reference to the Declaration of Independence, that formal and institutional rigidity “would render nominal and nugatory the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’” If the Framers “had violated both their powers and their obligations, in proposing a Constitution,” he concluded, “this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America.”

This and this alone was the genius of the Founders and Framers: not a special capacity for principled compromise and not extraordinary foresight or a collective wisdom sure to endure through the ages, but rather the force of their will. That is what it takes to break from an empire; that is what it took to cobble a nation together out of states with divergent economic and sociopolitical interests. And as we approach the close of a year in which we’ve fought bitterly over what we should claim from our history and what we should take from these men, it seems probable that we should try to inherit at least their audacity—whatever spirit convinced them they possessed the consciences and the intelligence to create not only a new country but a kind of society new to the world.

Do we have any less a right to do so? It is beyond debate that we are their moral superiors; after over two centuries of democratic experience here and of observing the democracies that have bloomed across the globe, we know infinitely more about the institutions that they built and democratic governance than they did. They declared themselves the tribunes of a public that they defined and delimited for their convenience. On the day we as a people finally rise beyond narrow faction and above the power of capital ⁠to make ourselves a new republic, it is certain that we will do better—securing for truly all Americans not only a framework of now familiar political freedoms but a framework of economic rights rooted in the notion that democratic values and a revulsion for arbitrary, unchallenged authority should shape more than just our system of government. Until then, a half-measure: If it is given the opportunity, the Democratic Party—without hesitation, guilt, or apology—should pack the Supreme Court to its advantage.

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